The High Court has quashed An Bord Pleanála’s decision that a gate on private land near Lough Leane was not exempt from planning permission. Mr Justice Meenan found the Board had failed to correctly consider findings in an earlier Circuit Court judgment about use of the laneway leading to the lakeshore.
The judicial review concerned a gate erected by Cornelius A. Dennehy and Suzanne Dennehy on their land at Fossa, Killarney, County Kerry. Donal Coffey, the owner of a nearby hotel, had asked Kerry County Council to determine whether the gate was exempt development. The Council referred the question to the Board.
The Board decided in August 2018 that the gate was development and would ordinarily qualify as exempt, but that an exemption restriction applied because the laneway had been habitually open to or used by the public during the preceding ten years to access the lakeshore. The Board’s decision meant the applicants needed planning permission or retention permission for the gate. It did not determine whether permission would be granted.
The applicants sought judicial review, arguing that the Board’s decision was unreasonable and irrational and that it had misinterpreted the planning regulations. The Board submitted that evidence, including statements from people who said they had used the laneway over many years, supported its decision. It also argued the Circuit Court had considered a different question: whether a right of way had been established.
The High Court noted that the Circuit Court had dismissed claims seeking to establish a right of way after hearing sworn evidence tested in cross-examination. Its findings included that rowing club members’ use of the laneway had been with the landowners’ permission, and that evidence of other local use was often unspecific. The court also noted the Circuit Court’s conclusion that there was no right of way over the laneway.
Justice Meenan held that the Board had not correctly considered the legal significance of those findings. He concluded that the Board’s decision rested on public use that, under the Circuit Court’s factual findings, was unlawful where it occurred without the applicants’ consent. The Board had therefore erred in law and reached an unreasonable or irrational decision.
The court granted an order of certiorari quashing the Board’s decision of 30 August 2018. It did not decide the gate’s ultimate planning status or whether planning permission should be granted. Because the judgment was delivered electronically, the parties were invited to make written submissions on consequential orders, including costs.